Judd v. Walker

• Court: Missouri Court of Appeals
• Writing for the Court: NORTONI, J.
• Citation: Judd v. Walker, 158 Mo.App. 156, 138 S.W. 655 (Mo. App. 1911)
• Decision Date: 06 June 1911
• Parties: CURTIS J. JUDD, Appellant, v. ALTEN M. WALKER, Respondent

138 S.W. 655

158 Mo.App. 156

CURTIS J. JUDD, Appellant, v. ALTEN M. WALKER, Respondent

Court of Appeals of Missouri, St. Louis

June 6, 1911

Appeal from Louisiana Court of Common Pleas.--Hon. David H. Eby Judge.

Judgment reversed and cause remanded.

Ball & Sparrow for appellant.

(1) Between joint wrongdoers no right of contribution exists that one can be heard to complain that all guilty of the wrong have not been included in the same action or included in one common judgment rendered as the result of its prosecution. The plaintiff could at any stage of the proceeding have dismissed as to any one or more of the defendants without the consent of the remaining, and without affecting in the least the merit of his action or the character or amount of his judgment. Berkson v Railroad, 144 Mo. 211; Buffalo L. Co. v. Everett, 30 Hun 588; Kimball v. Harmon, 34 Md. 407; Booker v. Puyear, 27 Neb. 346; Page v. Parker, 43 N.H. 363; Laverty v. VanArsdale, 65 Pa. St. 507; Mail Co. v. Barnes, 64 L. R. A. 574. (2) Plaintiff's agreement to dismiss as to Naxera is no more than a covenant not to further prosecute his suit against him, and the great weight of authority is that "a covenant not to sue one of several wrongdoers is no bar to action against the others, so long as there has been no complete satisfaction." Arnett v. Railroad, 64 Mo.App. 368.

Pearson & Pearson for respondent.

The undoubted rule of law is, "that a release of one of two joint tortfeasors releases the other." Hubbard v. Railroad, 173 Mo. 254; Dulaney v. Buffum, 173 Mo. 14; Chicago Herald Co. v. Bryan, 195 Mo. 574; Breeden v. Insurance Co., 220 Mo. 327; Iron Co. v. Ruce, 179 Mo. 480.

NORTONI, J. Reynolds, P. J., and Caulfield, J., concur.

OPINION

NORTONI, J.

This is a suit for damages accrued to plaintiff through the fraud and deceit of defendant. After the answer and reply were in, the court gave judgment on the pleadings alone, to the effect that plaintiff was not entitled to recover, for the reason he had accepted $ 350 from one of defendants in the action as originally instituted and in consideration thereof covenanted not to further prosecute the suit against him. From this judgment, plaintiff prosecutes the appeal.

The question for decision is whether or not a discharge is operated in favor of one joint tortfeasor, through the acceptance of a stipulated sum from another, against whom the suit is likewise pending, in consideration of a covenant not to further prosecute the suit against the tortfeasor who thus purchased his peace. It will be sufficient to summarize a few relevant facts and set forth the tenor and effect of the pleadings, to a complete understanding of the propositions to be considered. It appears defendant, Walker, is a real estate agent at Louisiana, Missouri, engaged in the pursuit of selling lands for others, and Fred Naxera, who was originally sued in this action with him as a joint tortfeasor, owned a tract of land in Pike county, Illinois, which he authorized defendant Walker to sell for him at the price of forty dollars per acre. Plaintiff, who desired to buy the land, viewed it, but was wholly unadvised as to its precise acerage or extent and relied entirely upon the representations of Walker with respect thereto. The petition avers that defendants (Walker, the agent, and Naxera, the owner of the land) co-operated together, to the end of inducing plaintiff to purchase the land at the agreed price of forty dollars per acre for a given number of acres, when, in truth and in fact, they and each of them knew the tract did not contain the number of acres so represented, but on the contrary in its entirety consisted of twenty-six acres less; that plaintiff believed such false and fraudulent representations, relied thereon and so believing purchased the said tract of land at the agreed price of forty dollars per acre, for which he paid according to the full number of acres it was so falsely represented to contain. Because of such fraud and deceit, which it is averred was principally practiced through defendant Walker, the agent, but with the connivance and co-operation of Naxera, the owner, plaintiff instituted this suit against the two as defendants, jointly, to the end of recovering from them the amount of forty dollars per acre for the twenty-six acres for which he had paid though not contained in the tract purchased. The issue of fraud and deceit against the two defendants was reviewed by this court several years ago and the judgment of the trial court nonsuiting plaintiff reversed and the cause remanded, but the case was certified to the Supreme Court for final determination because of a conflict in the view entertained by this court and the Kansas City Court of Appeals on a similar question. For a more extended statement of the facts and circumstances of the case, reference is made to the former opinion of this court in Judd v. Walker, 114 Mo.App. 128, 89 S.W. 558. The Supreme Court adopted the opinion of this court and likewise reversed and remanded the cause, as will appear by reference to Judd v. Walker, 215 Mo. 312, 114 S.W. 979. Both this court and the Supreme Court affirmed the two defendants, Walker and Naxera, to be joint tortfeasors on the prima facie showing there made. But this is unimportant now, for the present appeal is to be determined on the facts set forth in the pleadings alone, and the former one involved the consideration of the evidence introduced for plaintiff. After the case was remanded, plaintiff consummated an arrangement with defendant Naxera, whereby Naxera paid him $ 350 in cash, and plaintiff agreed to dismiss the case as to him and that its prosecution should continue thereafter only against defendant Walker. In compliance with this agreement, the case was dismissed as to Naxera, but continued pending on the original petition against the present defendant, Walker. Of the petition, it is sufficient to say that it states a cause of action against Walker, the real estate agent, and Naxera, his principal, the land owner, as joint tortfeasors and lays a specific charge of their having co-operated together to defraud the plaintiff and actually consummated the same to his damage, etc. After the case was dismissed as to Naxera, an amended answer was filed by defendant Walker alone, in which he pleaded in bar a full satisfaction of plaintiff's cause of action by and a discharge thereof to his joint tortfeasor, Naxera, in consideration of the sum of $ 350, and it is averred this operated to discharge defendant as well. The answer further set forth a copy of the writing which is averred to manifest the agreement of the parties in that behalf. The alleged release set forth in the answer is as follows:

"IN THE LOUISIANA COURT OF COMMON PLEAS.

State of Missouri, County of Pike, ss.

Curtis J. Judd, Plaintiff, vs. Alten M. Walker, and Fred Naxera, Defendants.

In consideration of the payment of the sum of three hundred and fifty dollars ($ 350.00), by Fred Naxera to Ball & Sparrow, attorneys for plaintiff, it is agreed that the case, so far as Fred Naxera is concerned, shall be dismissed, and that the further prosecution of the same be only against Alten M. Walker.

This 20th day of February, 1909.

BALL & SPARROW,

Attorneys for Plaintiff."

Because of this, it is averred in the answer plaintiff is estopped from further prosecuting the alleged cause of action against defendant Walker. In his reply, plaintiff admitted that he executed the receipt to Naxera set forth in defendant's answer, for which he received $ 350 and agreed to dismiss the suit as to him, but the reply specially denies that he released or settled his claim or cause of action thereby, and avers that he did no more than to agree to dismiss the suit and not further prosecute it as to Naxera, reserving unto himself the right to prosecute the case against the present defendant, Walker. On these facts set forth in the pleadings, the judgment of the court invoked by a motion thereon was given to the effect that a satisfaction or release of the cause of action appeared as to Naxera and therefore it operated to the same effect in favor of Walker as having extinguished the right to pursue either for the same tort.

It is argued the court erred in its conclusion of law, for the reason it is obvious the pleadings reveal no more than a mere covenant not to sue and in no respect disclose a release or satisfaction of the cause of action. The argument is sound for the authorities mark a clear distinction between agreements such as this one and those which disclose a satisfaction or release. The reply specially denied that plaintiff received full satisfaction from Naxera; denies too that he released his cause of action, and avers that he expressly reserved unto himself the right to further prosecute the same against this defendant. With such express denials and averments in plaintiff's reply, of course, it may not be declared that either a satisfaction or release appears, unless the written receipt set forth in the answer and admitted in the reply so shows the fact to be. When this paper is examined, besides a receipt for $ 350, it manifests no more than a contractual undertaking to dismiss the suit against Naxera alone, with an express reservation on the part of plaintiff of the right to further prosecute it against defendant Walker, and an implied consent to that effect on the part of Naxera. The fact that plaintiff reserved to himself the right to further prosecute the suit against Walker and that Naxera impliedly consented thereto by accepting the receipt so worded suggests the parties neither contemplated full satisfaction of the claim nor a release of the cause of action asserted in the petition. Indeed, there is no word in the writing...